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Political statements at the Criminal Court
The long statement that the Judge read out before announcing the verdict of the Mubarak trial has a precedent: a 1988 case acquitting figures from the interior ministry of torture
Amr Shalakany , Monday 18 Jun 2012
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The Cairo Criminal Court chose to open the session in which it delivered the verdicts against ousted president Hosni Mubarak, former interior minister Habib El-Adly, and six aides, by delivering a political tract. The twenty-minute statement had no bearing on the court's actual function, which is to arbitrate disputes and state the justifications for its rulings.

The statement, read out by presiding Judge Ahmed Rifat, wended its way from a condemnation of the dark years of tyranny under Mubarak and praise for the joyful light brought by the 25 January Revolution. It then turned to an account of the court's ardent dedication to the performance of its historic mission and a recitation of statistical proof to this effect in terms of the number of days, sessions, and hours of reading time it devoted to these cases.

Finally, Judge Rifat reached the original purpose for which he appeared at the head of the bench that day. He paused, rearranged his papers in a manner befitting a person of his judicial stature, adjusted his voice to give it the appropriate tones of gravity and sternness, and declared that he was now ready to “pronounce the rulings of the court.” He first took the trouble to inform the court that the paragraphs containing the summaries of the judgements that he was about to read out were handwritten.

Only once before has the Cairo Criminal Court issued a tract of this sort. That was in June 1988, when it delivered its verdicts on the charges of torture that the Public Prosecution had brought against a number of police chiefs at the time. The “landmark torture case,” as it was described, concluded with the full acquittal of all defendants from the Ministry of Interior. That verdict was delivered following the recitation of a political statement, echoes of which would resound through Judge Rifat's courtroom 24 years later.

Among the reasons the presiding judge cited for acquitting the officers charged with torture were “the superficiality of the investigations” undertaken by the prosecution and “the lack of sufficient evidence.” How similar this sounds to Judge Rifat's oft-repeated refrain that “the depositions of the prosecution were devoid of evidence” establishing that the deaths and injuries of demonstrators during the revolution were caused by weapons or vehicles belonging to the police. And this was the cited reason that he had to clear the former minister of interior's six assistants of the charges of murder. 

Within days of the torture verdict in 1988, Judge Ahmed Mekki delivered a memorandum to his fellow members on the Board of Administration of the Judge's Club, calling for an emergency session to discuss the statement issued by the court before pronouncing its verdict. Judge Mekki registered two objections.

Firstly, such statements constitute “a departure from the judicial convention that holds that courts should not predicate verdicts with public statements and should confine themselves to pronouncing verdicts that rest on legal justifications, alone. The sole purpose of issuing substantiated judgements, as the law requires, is to demonstrate that the court has correctly understood the facts involved in the dispute and the cases presented by the adversaries so that a higher court can ascertain the soundness of the judgment that led to the results delivered by a lower court.”

Mekki added, “a judge should not link his pronunciation of a verdict to any other statement or purpose, for to do so would give people the right to suspect his intentions and imagine that his judicial impartiality had been warped, either to avert an uprising of an angry public or to ingratiate himself to an iniquitous ruler.”

The second objection had to do with the substance of the statement, itself, which violated a 1932 Court of Cassations ruling that stated, “Courts of law may not issue a criticism of the way the public prosecution performs its duties... If they have a complaint of this sort then they should refer to its chief.” One significance of that ruling, Mekki wrote, was that what ultimately counted was the final investigation that was conducted by the court, itself.

Referring to the 1988 judgment, he asked, “How much confidence would be left in the judiciary and its men if, in a case of this importance for which an elite of judges was mustered to hear it, their investigations were then described as insufficient and, indeed, superficial?”

Judge Mekki concluded the memorandum that he circulated among his peers in the Judge's Club nearly a quarter of a century ago with another question: How can such verdicts predicated by political statements “continue to command the veneration and respect of the people even upon appeal? Should we ask people to respect the statements and declarations issued by some courts when it is unclear who they are addressing and what their intent is, the only effect of which is to arouse doubts and suspicions regarding those who uttered them?”

The late Mohammed Asfour picked up the thread from Mekki. In a series of articles published in the Wafd newspaper the following month, he took it upon himself to respond to the articles appearing in the government press by such pro-regime pundits as Samir Ragab in Al-Misaa and Moussa Sabri and Said Sonbol in Al-Akhbar. That verdict came as a relief, one of them wrote, “after the violent blow that was recently dealt to the relationship between the man in the street and the security apparatus due to the continual processes of incitement and provocation exercised by members of the Lawyer's Syndicate Board and some opposition newspapers.” Naturally, those writers also applauded the statement preceding the pronunciation of the verdict.

Asfour concluded his series of responses to such writers by lodging an “urgent open complaint” with the Supreme Judicial Council against the “perverse behaviour and deplorable views” contained in the statement issued by the Criminal Court, which he described as evidence of the Mubarak regime's determination to run the country as a police state. With that predicated verdict, “the interior minister feels that he has a blank cheque to treat the people as colonial subjects” and the interior ministry has been given a green light “to continue to practice torture in prisons, jails and even police stations.”

The objections voiced by Mekki and Asfour against the statement issued by the court in 1988 are just as applicable to that issued by the court in the case of Mubarak and his aides in 2012. We will leave it to the reader to draw the analogies between the past and present, and suffice, here, by remarking on the cries to “purge the judiciary” that rang out following the court's acquittal of all the assistants to the minister of the interior. Certainly, the political statement Judge Rifat read out contributed to feeding the suspicions and doubts that would subsequently hover over the bench and its verdicts.

We should add, by way of conclusion, that the foregoing observations on the statement issued by the court in the Mubarak case do not constitute a departure from the recent appeal by Judge Hussam Al-Gheryani, Chairman of the Supreme Judicial Council, “to the people and the media to stop attacking the rulings that are under appeal before the court of cassations.” I did not discuss, here, the verdict or its justifications. I restricted myself solely to that tract issued in advance of these and that has no bearing on the actual function of the court to arbitrate in disputes on the basis of the law, and only the law.

Just as that purely political statement brought to mind the one issued by the court in the case of police torture in 1988, it raises the need to once again register an open complaint with the Supreme Judicial Council urging an immediate investigation into that flagrant departure from the established traditions and conventions of the judiciary and its previous rulings.

The writer is associate professor of law at the American University in Cairo





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Chibli Mallat
19-06-2012 12:31pm
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A fine piece, with a proviso
Thanks Prof Shalakany for an enlightening and thorough piece. My only proviso is to the statement of Judge Gheryani on refraining from commenting on decisions to be examined in cassation. The Court should welcome such comments, especially when they come from jurists, and you should lead work on a PUBLIC amicus curiae (as they are) to the Court on this important case, which needs to be reversed, so poor it looks from your comment. Your paper is just a joy to read. The coverage of the elections, from the Owl of Minerva to the live comments over the week-end, was better than any Western paper i know of. Best. Chibli
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Chibli Mallat
19-06-2012 12:30pm
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a fine piece, with a proviso
Thanks Prof Shalakany for an enlightening and thorough piece. My only proviso is to the statement of Judge Gheryani on refraining from commenting on decisions to be examined in cassation. The Court should welcome such comments, especially when they come from jurists, and you should lead work on a PUBLIC amicus curiae (as they are) to the Court on this important case, which needs to be reversed, so poor it looks from your comment. Your paper is just a joy to read. The coverage of the elections, from the Owl of Minerva to the live comments over the week-end, was better than any Western paper i know of. Best. Chibli
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